Analyze Evolution Of Law From Rheology

Administrative Enforcement is an important measure of administration management, whose mandatory feature makes it own an inherent characteristic that it can relatively easily violate the interests of the administrative counterpart. And it basically deals with the relationship between the administrative power and the right of the administrative counterpart, whose value lies in two aspects: on one hand, to ensure that the administrative organs successfully perform their statutory duties, in order to maintain public interests and public order; on the other hand, to coordinate the relationship between public interests and individual interests, in order to obtain the two at the same time. The realization of the value needs the support of specific systems, and such as the executive mode, the implementation of relief, and so on needs more concern.Through comparative analysis of administrative enforcement from such aspects as concept, nature, principles, types, entities and procedural legal system, while combining efficiency and fairness into the modern concept of the rule of law, this paper scientifically defines the attributes of administrative enforceable right. Then on the basis of it, the paper illustrates our present administrative enforcement systems through comparing those systems of the Two Schools, then analyses and points out China's deficiencies in current administrative enforcement control, whereby puts forwards related measures for improving the existing administrative enforcement systems, through combining the actual operation conditions of the existing administrative enforcement.The Two Schools have formed two kinds of modes of administrative enforcement, namely self-reliant enforcement of administrative organs and judicature enforcement of court involvement, with the ownership of administrative enforceable right as the division standard. This is no doubt influenced by various factors such as countries' law culture, democratic traditions, as well as the administrative law ideas and so on, but is more concerned with the issue of the relationship between state power and the rights of citizens, and is also a basic question which all public laws need to process. That is, the basic question the administrative enforcement power needs to process is the relationship between administrative power and rights of the administrative counterpart, which is also actually the main point of the quality struggles of various countries' administration enforcement systems, namely various definitions of the attributes of administrative enforcement power, therefore we need to give an accurate description of the concept of administration enforcement, simultaneously know its nature, principle, and type, and clarify it with other similar concepts.The attributes of administrative enforcement power plays a basic and pivotal role in the granting of administrative enforcement power and the establishment and improvement of related systems. As a compellable public power, administrative enforcement power's adscription is also enslaved to many other factors except for its attributes, such as the exertion status of administrative power and the worthiness choice of the legislator. Only if we can guarantee the efficiency of administration and the validity of specific administrative behaviors, prevent the abuse of executive power, and make a balance between them, meanwhile distinguish the different administrative enforcement power limits between the court and administrative organs, can we effectively protect the legitimate rights of citizens, legal persons or other organizations, taking the efficiency of administration into account at the same time.We are currently implementing a mixed system of administrative enforcement, that is, specific administrative behaviors should be enforcedly executed by administrative organs when authorized specifically by the law, otherwise, executive departments can only apply the court to implement it. Scholars generally sum up the system like this"based on the principle of applying the courts for implementation, and with self-reliant enforcement of administrative organs as exception." But in practice there are some problems, that is, there are some inadequacies in our entity legal systems and procedural legal systems and relief systems. For example, we have not established"the law of administrative enforcement"at present, and the law regulations of administrative enforcement are scattered, lacking in standards; there is also a lack of unified standards about the distribution of administrative enforcement power, namely confused power, inconsistent conditions and standards, and the distribution of administrative enforcement power limits between the court and administrative organs lacks laws criterion; there is not a unified criterion about procedures of administrative enforcement, while the existing laws and regulations prescribe executive self-reliant enforcement, they just prescribe the entity implications of enforcement, lacking in regulations about procedures; also, it is almost "blank" about the administrative legal systems concerning administrative self-reliant enforcement on relief, which greatly affects the improvement of administration efficiency, and is not conducive to safeguarding the citizen's legitimate rights, also not good for fair justice.Aiming at the shortages of administrative enforcement provisions in our existing legal systems, administrative enforcement should be improved from three aspects: prior points (completing established systems of administrative enforcement), middle ones (bettering the process control of administrative enforcement), and last ones (improving the relief system of administrative enforcement). Specifically, the establishment of systems should strictly control the source of administrative enforcement power from these two aspects: establishment subjects and establishment contents; the process control should be started from general administrative enforcement proceedings and simple administrative procedures, paying attention to application of the principle of proportionality and warned procedures; because administrative enforcement is a composite conduct form, a course of conduct, it also contains such three stages as warning, forcibly enforcing decisions and implementing administrative enforcement, in addition to the need to deal with administrative decisions. Whether each stage owns independent justifiability not only depends on if it is an independent and integrated conduct, but also relies on if it has the possibility of violating civil rights. Relief systems should distinguish the nature of the relief in various stages of administrative enforcement and designs different relief ways. At the same time, we should also learn from Germany's irrevocable principle. After the law relief expiry of each stage, it is forbidden dispute the legality of the conduct in the next decision procedure.